Citation Nr: 0640285
Decision Date: 12/29/06 Archive Date: 01/05/07
DOCKET NO. 98-20 061 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for bilateral tinnitus.
3. Entitlement to service connection for a skin rash,
including as due to an undiagnosed illness.
4. Entitlement to an earlier effective date than May 1, 1998
for grant of a total disability rating based on individual
unemployability due to service-connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Parker, Counsel
INTRODUCTION
The veteran served on active duty from January 1973 to March
1975, August 1979 to October 1985, July 1991 to January 1992,
February 3, 1992 to April 14, 1997, and September 30, 1997
through April 30, 1998.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions of the Department of
Veterans Affairs (VA) Regional Office (RO) in Montgomery,
Alabama.
A motion to advance this case on the docket, due to financial
hardship was received by the Board in July 2000. This motion
was granted by the Board in the same month. See 38 U.S.C.A.
§ 7107 (West 2002); 38 C.F.R. § 20.900(c) (2006).
The issues of service connection for bilateral hearing loss,
bilateral tinnitus, and skin rash as due to an undiagnosed
illness were denied in a December 1997 rating decision. The
veteran entered a notice of disagreement with this decision.
These issues were remanded by the Board in August 2000 for
development that included verification of the veteran's
periods of active duty service. That development has been
completed, and the case has now been returned to the Board
further appellate consideration.
During the appeal, a November 2002 rating decision granted a
TDIU and initially assigned an effective date of June 26,
2002. In December 2002, the veteran entered a notice of
disagreement with the effective date assigned for TDIU. A
subsequent rating decision during the appeal in March 2004
granted an effective date for TDIU of May 1, 1998. The
veteran has not indicated that the grant of effective date
for TDIU of May 1, 1998 fully satisfies his claim on appeal.
FINDINGS OF FACT
1. The veteran had increased hearing loss during his periods
of active duty service from January 1973 to March 1975, from
July 1991 to January 1992, and from February 1992 to April
1997; he was exposed to acoustic trauma during active
service; and competent medical opinion evidence relates the
veteran's current bilateral hearing loss disability to
acoustic trauma in service.
2. The veteran's diagnosed bilateral tinnitus has not been
disassociated from acoustic trauma suffered during active
duty service.
3. The veteran had active duty in the Southwest Asia theater
of operations during the Persian Gulf War from July 1991 to
November 1991.
4. The veteran has recurrent dermatitis of the face, neck,
and torso that has been related by competent medical evidence
to service during the Persian Gulf War.
5. Submissions of medical evidence from the veteran that
were received in August 1997 were sufficient to raise an
informal claim for TDIU.
6. The veteran was on active duty service for years until
April 14, 1997, and was again on active duty service from
September 30, 1997 through April 30, 1998.
7. For the period from April 15, 1997 through September 29,
1997, the veteran was not in active duty service, and was
unable to maintain substantially gainful employment due to
service-connected disabilities.
CONCLUSIONS OF LAW
1. Resolving all reasonable doubt in favor of the veteran,
bilateral hearing loss was incurred in or aggravated by
military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A,
5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159,
3.303, 3.304, 3.306, 3.385 (2006).
2. Resolving all reasonable doubt in favor of the veteran,
bilateral tinnitus was incurred in active service. 38
U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp.
2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2006).
3. Resolving all reasonable doubt in favor of the veteran,
recurrent dermatitis of the face, neck, and torso was
incurred in active service. 38 U.S.C.A. §§ 1110, 1117, 1131,
5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§
3.102, 3.159, 3.303, 3.317 (2006).
4. The criteria for a TDIU were met for the period from
April 15, 1997 through September 29, 1997, but not for any
other period prior to May 1, 1998. 38 U.S.C.A. §§ 5107, 5110
(West 2002 & Supp. 2006); 38 C.F.R. §§ 3.155, 3.157, 3.159,
3.400, 4.15, 4.16, 4.18 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duty to Notify and Assist
VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103,
5103A (West 2002 & Supp. 2006); 38 C.F.R. § 3.159 (2006).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant of any information and evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
seek to provide; (3) that the claimant is expected to
provide; and (4) must ask the claimant to provide any
evidence in her or his possession that pertains to the claim
in accordance with 38 C.F.R. § 3.159(b)(1). Such notice
should be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).
Because the full benefits sought on appeal are being granted
by this Board decision, no further notice or assistance to
the appellant is required. To the extent that there may be
any deficiency of notice or assistance, there is no prejudice
to the appellant in proceeding with these issues because of
the favorable nature of the Board's decision. With regard to
any remaining aspect of a claim for an earlier effective date
for TDIU, the notice and duty to assist provisions have no
effect on an appeal where the law, and not the underlying
facts or development of the facts are dispositive in a
matter. Manning v. Principi, 16 Vet. App. 534, 542-43
(2002). For these reasons, it is not prejudicial to the
appellant for the Board to proceed to finally decide the
appeal. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir.
2004); Quartuccio v. Principi, 16 Vet. App. 183, 186-87
(2002); Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v.
Brown, 4 Vet. App. 384 (1993).
Service Connection for Bilateral Hearing Loss
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
military, naval, or air service. See 38 U.S.C.A. § 1110; 38
C.F.R. §§ 3.1(k), 3.303(a), 3.304. Where a veteran who
served for ninety days or more during a period of war
develops certain chronic diseases, such as sensorineural
hearing loss, to a degree of 10 percent or more within one
year from separation from service, such diseases may be
presumed to have been incurred in service even though there
is no evidence of such disease during the period of service.
This presumption is rebuttable by affirmative evidence to the
contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38
C.F.R. §§ 3.307, 3.309.
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
A preexisting injury or disease will be considered to have
been aggravated by active wartime service, where there is an
increase in disability during such war service, unless there
is clear and unmistakable evidence that the increase in
disability is due to the natural progress of the condition.
38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b).
In Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), the
United States Court of Appeals for the Federal Circuit
(Federal Circuit Court) held that the correct standard for
rebutting the presumption of soundness requires that VA show
by clear and unmistakable evidence that (1) the appellant's
disability existed prior to service and (2) that the
preexisting disability was not aggravated during service.
Impaired hearing will be considered a disability when the
auditory threshold in any of the frequencies 500, 1000, 2000,
3000, 4000 Hertz is 40 decibels or greater; or when the
auditory thresholds for at least three of the frequencies
500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent. 38 C.F.R. § 3.385.
It is not required that hearing loss disability during
service be shown. The United States Court of Appeals for
Veterans Claims (Court) has held, "when audiometric test
results at a veteran's separation from service do not meet
the regulatory requirement for establishing a 'disability' at
that time, he or she may nevertheless establish service
connection for a current hearing disability by submitting
evidence that the current disability is causally related to
service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). In
that case, the Court agreed with the Secretary's suggestion
that service connection may be established if the record
shows acoustic trauma due to noise exposure in service,
audiometric test results show an upward trend in auditory
thresholds, post-service audiometric testing establishes
current hearing loss constituting a disability under 38
C.F.R. § 3.385, and competent evidence relates current
hearing loss disability to active service. Id. at 159-60.
The veteran contends that he suffers from bilateral hearing
loss as a result of noise exposure during periods of active
duty service. Service personnel records show that the
veteran worked in supply, and was attached to a heavy
materials supply company, during his first period of active
duty service. For the period of service from July 1991 to
January 1992 that included service in the Persian Gulf, the
veteran credibly reported exposure to gunfire, tanks, track
vehicles, and five-ton vehicles.
Although the veteran was not diagnosed with bilateral hearing
loss during active service, service medical records show an
upward trend in auditory thresholds. Service medical records
for the period of service from January 1973 to March 1975
show increase in right ear hearing loss in the 500 and 1000
Hertz ranges. Service medical records for the period of
service from July 1991 to January 1992 show increase in left
ear hearing loss in the 3000 Hertz range. An in-service
audiology examination report in April 1996 reflects increase
in left and right ear hearing loss in the 500, 1000, 2000,
3000, and 4000 Hertz ranges.
The veteran's bilateral hearing loss meets the definition of
current hearing loss disability under 38 C.F.R. § 3.385. An
in-service audiology examination report in April 1996
reflects left ear hearing loss of 40 decibels at the 3000
Hertz range. Maryland CNC word scores recorded at the
September 1997 VA audiological examination reflect speech
recognition scores of 88 percent in the right ear and 92
percent in the left ear.
The record includes competent medical opinion evidence
relating the veteran's diagnosed current bilateral hearing
loss disability to in-service acoustic trauma. A September
1997 VA audiological examination report includes the
audiologist's opinion that it was as likely as not that the
veteran's current bilateral high frequency hearing loss was
caused by exposure to loud noises during service. An October
2000 private audiology opinion also related the veteran's
bilateral hearing loss to a reported history of in-service
noise exposure. Based on this evidence, and resolving all
reasonable doubt in favor of the veteran, the Board finds
that bilateral hearing loss was incurred or aggravated in
military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38
C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.385.
Service Connection for Bilateral Tinnitus
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
military, naval, or air service. See 38 U.S.C.A. §§ 1110,
1131; 38 C.F.R. §§ 3.303, 3.304. Disability which is
proximately due to or the result of a service-connected
disease or injury shall be service connected. When service
connection is thus established for a secondary condition, the
secondary condition shall be considered as part of the
original condition. 38 C.F.R. § 3.310.
The veteran contends the his bilateral tinnitus is
etiologically related to in-service exposure to acoustic
trauma. A September 1997 VA audiological examination report
includes the veteran's report of a history of noise exposure
in service during the Persian Gulf War in 1991, and of
bilateral constant tinnitus since service separation. The
veteran's reports of continuous post-service tinnitus are
found to be credible.
The veteran's diagnosed bilateral tinnitus has not been
disassociated from acoustic trauma suffered during active
duty service. Based on this evidence, and resolving all
reasonable doubt in favor of the veteran, the Board finds
that bilateral tinnitus was incurred in active service. 38
U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107;
38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310.
Service Connection for Skin Rash
The veteran contends that his current skin rash is related to
service, including active duty in the Southwest Asia theater
of operations during the Persian Gulf War from July 1991 to
November 1991. His most recent periods of active duty
service were from July 1991 to January 1992, from February
1992 to April 1997, and from September 1997 to April 1998.
He filed his claim for service connection for skin rash prior
to final separation from active duty service.
Although service medical records are negative for any
complaints, findings, or diagnosis of a skin disorder, a June
1998 VA examination report conducted one month after service
separation from the last period of service reflects the
veteran reported daily itching and burning rash on the arms
and chest that began in 1991, for which he had used lotion
and Neosporin ointment; clinical findings of a few irregular
patches of wrinkled, slightly elevated skin, with some slight
increase in pigmentation noted on both upper arms; and a
diagnosis of tinea versicolor skin lesions.
VA treatment records show treatment for a recurring rash of
the chest, back, legs, trunk, and arms, and white splotchy
rash on the face from 2001 to 2003, with the veteran's
reported history of the rash having recurred for several
years. An October 2003 VA progress note shows the veteran's
report of recurring rash on the torso, neck, and face since
the Persian Gulf War in 1991; clinical findings of vague
disseminated hyperkeratotic patches on the face, neck, and
torso; a diagnosis by a VA dermatology clinic physician of
non-specific dermatitis that was consistent with Gulf War
environment exposure.
After a review of the evidence, the Board finds that the
evidence for and against the veteran's claim is in relative
equipoise on the question of whether the veteran's diagnosed
recurrent dermatitis of the face, neck, and torso is directly
related to the veteran's active duty service during the
Persian Gulf War in 1991. Although the service medical
records do not show any symptoms or complaints in 1991 or
1992, the veteran has consistently reported years of
recurrence of such symptoms of skin rash, including while he
was still on active duty; the symptoms the veteran reported
were confirmed by clinical findings on VA physical
examination within a month of service separation; and the
October 2003 medical diagnosis tends to relate the currently
diagnosed recurrent dermatitis of the face, neck, and torso
to the veteran's active duty service during the Persian Gulf
War in 1991.
Resolving all reasonable doubt in favor of the veteran, the
Board finds that recurrent dermatitis of the face, neck, and
torso was directly incurred in active service.
38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§
3.102, 3.159, 3.303. The Board notes that service connection
for a skin disorder was also claimed under the theory that it
was due to an undiagnosed illness; however, because the
evidence supports a grant of direct service connection for a
diagnosed skin disability of dermatitis, the Board does not
need to reach the question of whether service connection
would be warranted for a skin disorder as due to an
undiagnosed illness under the provisions of 38 U.S.C.A. §
1117 and 38 C.F.R. § 3.317.
Earlier Effective date for TDIU
A November 2002 rating decision on appeal granted a TDIU and
initially assigned an effective date of June 26, 2002. In
December 2002, the veteran entered a notice of disagreement
with the effective date assigned for TDIU. A subsequent
rating decision during the appeal in March 2004 granted an
effective date for TDIU of May 1, 1998.
The veteran has not indicated that the grant of effective
date for TDIU of May 1, 1998 fully satisfies his claim on
appeal. Through his representative, he generally contends
that an earlier effective date for a TDIU is warranted, and
cites earlier effective date statute and regulations that
pertain to granting the "increase" of TDIU up to one year
prior to receipt of the claim for TDIU.
In November 1996, the veteran submitted a claim to reopen
service connection for a back condition, among other claimed
disorders. In January 1997, the veteran submitted a private
hospitalization report that showed he had previously
undergone back surgery in July 1996, and had undergone
another back surgery (hemilaminectomy and diskectomy at L4-
L5) in December 1996, and had significant post-operative
limitations, and was requesting reopening of a claim for
service connection for a back disorder.
In March 1997, the veteran submitted a claim for service
connection for multiple disabilities that included
psychiatric symptoms (on a Statement in Support of Claim
form). The evidence submitted in March 1997 also included
medical evidence of back pain during service and private
medical evidence of treatment for a back disability during
and subsequent to active duty service periods.
In August 1997, the veteran submitted various private and VA
medical records that established his unemployability.
Private treatment records received in August 1997 show that
the veteran was not working, and had not worked since June
1996, due to physical problems and surgeries associated with
his back and due to psychiatric problems that included major
depression, and that these disorders were likely permanent in
nature. A VA psychologist's May 1997 letter that was
received in August 1997 shows that the veteran's prognosis
for working was quite poor due to back and psychiatric
disabilities (for which service connection was eventually
established). A VA neurologist's April 1997 letter that was
received in August 1997 shows the severity of the veteran's
back and psychiatric symptoms, and included the opinion that
the veteran was unfit for duty, had significant disabilities,
and would not easily be employable.
Service connection was eventually established for the claimed
back and psychiatric disabilities, and a TDIU was eventually
granted based primarily on these disabilities. Through a
series of rating decisions during the pendency of this
appeal, including rating decisions revising earlier rating
decisions on the basis of clear and unmistakable error,
service connection was granted for a back disability
(recurrent lumbar radiculopathy status post hemilaminectomy
and diskectomy), which was rated as 60 percent disabling for
the period from April 15, 1997 through September 29, 1997 (a
time between active duty service periods); and service
connection was granted for a psychiatric disability (major
depressive disorder with history of adjustment and pain
disorder that included multiple symptoms), which was rated as
50 percent disabling for the period from April 15, 1997
through September 29, 1997 (a time between active duty
service periods).
In this case, the Board finds that August 1997 submissions of
VA and private medical evidence from the veteran were
sufficient to raise an informal claim for TDIU. The
applicable regulation regarding informal claims provides that
such reports of examination or treatment as the veteran
submitted in August 1997 may be accepted as an informal claim
for benefits if any such report relates to a disability which
may establish entitlement, and a formal claim for pension or
compensation has been allowed or a formal claim for
compensation has been disallowed because the service-
connected disability is not compensable in degree. 38 C.F.R.
§ 3.157. In this case, an October 1992 rating decision had
previously denied the veteran's claims for service connection
for a back disorder and psychiatric disability, indicating
that the denial of psychiatric disorder was based on no
evidence of current disability. The regulation further
provides that, where an informal claim is accepted, such
evidence from a private physician will be accepted as an
informal claim effective the date of receipt of such
evidence. In this case, the private medical evidence was
received in August 1997. 38 C.F.R. § 3.157.
The applicable effective date statute and regulations provide
that the proper effective date for increased rating claims
(which includes TDIU) is the earliest date as of which it is
factually ascertainable that an increase in disability had
occurred, if a claim is received within one year from such
date; otherwise, the effective date is the date of receipt of
claim for increased rating. 38 U.S.C.A. § 5110(b)(2);
38 C.F.R. § 3.400(o)(2). The Court has applied this
"increased rating" effective date provision to claims for
TDIU. See Hurd v. West , 13 Vet. App. 449 (2000). A claim
for a TDIU is, in essence, a claim for an increased rating
and vice versa. Norris v. West, 12 Vet. App. 413, 420
(1999). A TDIU claim is an alternate way to obtain a total
disability rating without recourse to a 100 percent rating
under the VA Schedule for Rating Disabilities (Rating
Schedule). See Parker v. Brown, 7 Vet. App. 116, 118 (1994).
A TDIU may be assigned where the schedular rating for the
veteran's service-connected disabilities is less than 100
percent when service-connected disabilities render the
veteran unable to secure or follow a substantially gainful
occupation.
38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2006).
The Board finds that the veteran met the criteria for TDIU
for the relevant period prior to receipt of claim from April
15, 1997, and through September 29, 1997. In this case, the
evidence cited establishes that the veteran became
unemployable as of June 1996. The evidence received in
August 1997 includes private treatment records that show that
back and psychiatric problems (that were subsequently
service-connected for the period from April 15, 1997 through
September 29, 1997) which prevented the veteran from working
were likely permanent in nature; a VA psychologist's opinion
that the veteran's prognosis for working was quite poor due
to back and psychiatric disabilities; and a VA neurologist's
opinion that the veteran was unfit for the military duty
which he was supposed to be performing, had significant
disabilities, and would not easily be employable.
For the period from April 15, 1997 through September 29,
1997, the service-connected back disability (recurrent lumbar
radiculopathy status post hemilaminectomy and diskectomy) was
rated as 60 percent disabling, and the service-connected
psychiatric disability (major depressive disorder with
history of adjustment and pain disorder that included
multiple symptoms) was rated as 50 percent disabling, for a
combined 80 percent disability rating. A high rating in
itself is recognition that the impairment makes it difficult
to obtain and retain employment. The question is whether the
veteran is capable of performing the physical and mental acts
required by employment, not whether the veteran can find
employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993).
The period from April 15, 1997 through September 29, 1997 is
the only relevant period within a year prior to the August
1997 receipt of informal claim for TDIU for which an earlier
effective date for TDIU may be granted. This is because the
veteran was in active duty service for years until April 14,
1997, and was again on active duty service from September 30,
1997 (through April 30, 1998); therefore, April 15, 1997
through September 29, 1997 is the only period within a year
prior to receipt of informal claim for TDIU during which the
veteran was not on active duty. A TDIU has already been
granted from May 1, 1998, the first day following separation
from the last period of active duty service. No earlier
effective date than grant of TDIU for the period from April
15, 1997 through September 29, 1997 is legally possible.
Where the law is dispositive, the claim must be denied due to
a lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426,
430 (1994).
ORDER
Service connection for bilateral hearing loss is granted.
Service connection for bilateral tinnitus is granted.
Service connection for a skin rash is granted.
An effective date for a TDIU is granted for the period from
April 15, 1997 through September 29, 1997, and not for any
other period prior to May 1, 1998.
____________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs